ODUNUKWE v. CHIKELUNA (2021)

ODUNUKWE v. CHIKELUNA

(2021)LCN/15495(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, February 09, 2021

CA/K/180/2018

RATIO

JURISDICTION: WHETHER IT IS THE STATEMENT OF CLAIM THAT CONFERS JURISDICTION ON THE COURT

DUTY OF COURT: EVALUATION OF ISSUES FOR DETERMINATION

This is a primary judicial duty function of the Courts which every Court owe to the litigant in the legal dispute brought before that Court for resolution. See: Archianga v. A. G. Akwa-Ibom State (2005) 6 NWLR (Pt. 1454) 1, 68. Failure by the Court to pronounce on issues presented for determination will lead to a denial of fair hearing and invariably, miscarriage of justice. See: Brawal Shipping Nig. Ltd. v. F. N. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387, 403, Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114, 165 – 166; Ofordum v. Nigerian Army (2015) 1 NWLR (Pt. 1439) 145, 190. PER SAIDU TANKO HUSSAINI, J.C.A.

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

NESTOR ODUNUKWE APPELANT(S)

And

CHIMEZIE CHIKELUNA RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Respondent herein by the Writ of Summons and Statement of Claim, dated 26th April, 2016, commenced action at the High Court of Kaduna State and claimed against the Appellant as Defendant, three (3) reliefs namely:
(a) Six Thousand, One Hundred and Fifty Euros (€6,150) only or its equivalent in Naira at the current rate being the money deposited by the Plaintiff with the Defendant in pursuance of a contract which the Defendant had breached.
(b) Interest on the above stated sum at the rate of 1% per month till the judgment sum is fully liquidated.
(c) The cost of this action.

Upon the Originating Processes of Court being served, the Appellant filed a defence and denied the claim hence the suit proceeded into trial wherein the Respondent, as the only witness testified for himself in support of the claim and closed his case. The trial Court thereafter adjourned the case for defence. That was on the 1st November, 2016. The Appellant however, in the interval, filed an application by way of the Notice of Preliminary Objection filed on the 22/11/2016, wherein he prayed for:

(1) An Order striking out the suit filed by the Respondent for want of jurisdiction.
(2) And for such other Orders as the Court may deem fit to make in the circumstance.

The brief facts of the case are that the Respondent, who at that material time was resident in Kaduna, transferred or remitted monies in the sum of €6,150 (Six Thousand One Hundred and Fifty Euros) to the Appellant, then resident in Holland, with the undertaking that the latter would purchase 600 pieces of fairly used bicycles and ship or transport them to the Respondent in Nigeria. The Respondent had not seen or received the stated goods or items as at the date he took out the Writ of Summons and the Statement of claim against the Appellant as at the 26/4/2016. As indicated before, the suit proceeded to hearing in the course of which the Appellant, by reason of issues raised by him Preliminarily, at the close of Plaintiffs/Respondents case, prayed the Court to strike out the suit on the grounds that:
(1) The High Court of Kaduna State does not have territorial jurisdiction over the Defendant or the subject matter.
(2) The suit discloses no reasonable cause of action.
(3) There was no valid contract express or implied supported by the claim.

The trial Court took argument from counsel on both sides on the 5/12/2016 over the Preliminary Objection raised and in a considered ruling delivered on the 2/11/2017 overruled the Preliminary Objection and dismissed same.

It is against this Ruling and Order that the Appellant lodged his appeal to this Court. The Notice of Appeal containing two (2) grounds and dated the 7th November, 2017 was filed the same day while main Record of Appeal and the additional record of appeal were both transmitted to this Court and regularised accordingly.

Learned Counsel herein filed and exchanged their briefs of argument in terms of:
(1) Appellant’s Brief of Argument filed on the 21/12/2018, was deemed on the 11/4/2019 as properly filed and served. The said brief of argument having duly been regularised is a valid process of Court.
(2) Respondent’s Brief of Argument filed on the 20/3/2019, was on the 11/4/2019 deemed as properly filed and served.
(3) The Reply Brief filed on the 31/5/2019 were deemed as properly filed on the 21/10/2020.

The said briefs of argument was adopted by Learned counsel respectively, when the appeal came up for hearing on the 21/10/2020.

Mr. A. A. Iroagalachi Esq. (with B. C. Iroagalachi Esq.) speaking for the Appellant urged us to allow this appeal and set aside the Ruling or Decision appealed against.

Mr. O. C. Enwelum (SAN) with Joel Adamu Esq., and Bilkisu Tanko Esq.,) for the Respondent in further adumbration of their brief of argument urged us to discountenance pages 90 – 95 of the Main record of appeal and in its place reckon with pages 1 – 8 of the Additional record which he said is the complete Ruling of the Court below. We were urged by him, to dismiss this appeal and affirm the holding of the Court below.

Pages 90 – 95 of the Main record and pages 1 – 8 of the additional record of appeal both re-enact the same Ruling as delivered at the Court below. What appears to me to separate the two sets of record is that whereas the Ruling contained in the additional record is or was certified as the “true copy” of the ruling delivered at the Court below whereas pages 90 -95 of the main record was not so certified. I can understand the point the learned silk seek to canvass in this regard.

In the Appellant’s briefs of argument at page 5, are two issues distilled from the two (2) grounds of appeal, namely:
(1) Whether the Court was right when it failed to comprehensively consider all the issues raised by the Appellant in his Preliminary Objection before dismissing same and whether such failure did not occasion a miscarriage of justice against the Appellant (based on Ground One).
(2) Whether the lower Court ought to have relied only on the averment contained in paragraph 6 of the statement of claim in making its finding as to Kaduna as the place of performance of the alleged contract wherein evidence already adduce by the Respondent himself points to a contrary place of performance (base on ground two).

The Respondent, on his part, has distilled just one issue in his brief of argument for determination of Court. This is how the lone issue was framed by him:
“Whether the trial Court had jurisdiction to determine this case”.

The two issues identified in the Appellant’s brief of argument are to me, very germane considering the totality of the printed record before us including the additional record hence I adopt the said two (2) issues identified in the Appellant’s brief of argument in addressing this appeal. What is more, Respondent’s lone issue can be subsumed under Appellant’s issue No. 1 which states:
“Whether the Court was right when it failed to comprehensively consider all the issues raised by the Appellant in his Preliminary Objection before dismissing same and whether such failure did not occasion a miscarriage of justice against the Appellant” (based on Ground one).

In addressing this question in his brief of argument, learned Appellant’s counsel alluded to the application which the Appellant had placed before the trial Court in terms of the Notice of Preliminary Objection including the Grounds why the suit of the Respondent before the trial Court should not be entertained. Learned Appellant’s counsel further referred us to the written submission made at that Court including live issues the Court was called upon to address. Learned Appellant’s counsel argued that the trial Court, regrettably, failed to consider all the issues placed before it for determination and this failure, it is argued, impacted negatively on the Appellant’s right to fair hearing, his case not having been considered, articulated and pronounced upon. We were urged to so hold and resolve issue No. 1 in favour of the Appellant.

Issue No. 1 as formulated in the Appellant’s brief of argument was not seriously adverted to or addressed in the Respondent’s brief of argument, that is to say, the question whether or not the Court below made pronouncements on every issue raised before it, relative to the Preliminary Objection of the Appellant, was not seriously addressed by them.

At the hearing of the application at the Court below, both counsel respectively relied on their written addresses as submitted by them. See pages 61 – 67 of the record for Defendant/Appellant and pages 68 – 74 of the record for the Plaintiff/Respondent. It is worthy of note that the Appellant in the written address in support of his Preliminary Objection, identified three (3) issues for determination, see in particular page 62 of the record. Respondent in his reply to the written address adopted the said three (3) issues; namely:
(1) Whether a valid enforceable contract exists between the Plaintiff and the defendant.
(2) Whether Order 2 Rule 1 (1) (2) of the High Court of Kaduna State (Civil Procedure) Rules 2007 permits this Honourable Court to assume jurisdiction over this suit.
(3) Whether the failure of the Plaintiff to seek leave of this Honourable Court to issue and serve the Writ of Summons and other Originating Processes in this Court on the defendant out of jurisdiction does not render these proceedings a nullity.

The argument for the Appellant on the three (3) issues formulated by him in his written address in support of the Preliminary Objection are set out at pages 62 – 67 of the record. In the same vein, arguments in the Written Reply in opposition are set out at pages 69 – 74. The reply address on point of law are at pages 75 – 85 of the record of appeal.

The Court therefore, confronted as it were, with issues identified by the parties who also canvased arguments thereto, is bound to address and pronounce on each and every issue so raised or identified by the parties or their counsel. This is a primary judicial duty function of the Courts which every Court owe to the litigant in the legal dispute brought before that Court for resolution. See: Archianga v. A. G. Akwa-Ibom State (2005) 6 NWLR (Pt. 1454) 1, 68. Failure by the Court to pronounce on issues presented for determination will lead to a denial of fair hearing and invariably, miscarriage of justice. See: Brawal Shipping Nig. Ltd. v. F. N. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387, 403, Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 114, 165 – 166; Ofordum v. Nigerian Army (2015) 1 NWLR (Pt. 1439) 145, 190.

In the instant case on appeal, the trial Court, after carrying out the exercise of the review of the submissions, made by counsel, held, at the concluding part of its Ruling, (pages 7 – 8 of the additional record of proceedings) thus:
“It is trite that an Applicant to a notice of Preliminary Objection is deemed to have accepts the Plaintiff suit, but that the Court has no jurisdiction to entertain same. See: A. G. Fed. & Anr. V. A.N.P.P (2003) 18 NWLR (85) 182 at 207 B – D.
From the Statement of claim of the Plaintiff he has made it very clear that he is a businessman dealing with sewing machines and bicycles. He carries out this business at No. K9 Ahmadu Bello Way by Jos Road Kaduna. He has also made it very clear that he resides at No. 64 Achina Street Anguwan Yelwa Sabo, Kaduna. See paragraph 1 statement of claim.
The Plaintiff states in paragraph 6 Statement of claim that the Plaintiff avers that it was agreed that the 600 pieces of fairly used Bicycles was to be sent to him in a forty foot (40ft) container from Holland to Kaduna.
From the above paragraphs of the Statement of claim of the Defendant, it is crystally clear to me that the Court has jurisdiction to entertain the case of the Plaintiff. The Preliminary Objection is overruled and accordingly dismissed”

The trial Court, it would appear, assumed, jurisdiction over the matter before it merely because, the place of the performance of contract between the Appellant and the Respondent, being in Kaduna State it (the Court below) has territorial jurisdiction over that matter without first alluding to a more fundamental question, on the perfection of the condition precedent to the trial Court’s assumption of jurisdiction to hear the case. I am talking about proper endorsement of the Writ of Summons meant for service outside the jurisdiction of the Court pursuant to Section 97 of the Sherriff and Civil Process Act and Order 3 Rule 9 of the High Court (Civil Procedure) Rules of Kaduna State. I am also talking about the requirement for leave to issue and serve the writ of summons outside jurisdiction. These among others, are issues addressed by the Appellant vide the preliminary objection taken by him but which the trial Court glossed over, having failed to make pronouncements on them.

The apex Court has held in Madukolu v. Nkemdilim (1962) LPELR 240239, a case which is the locus classias on this point that a Court is competent when:
“(1) it is properly constituted as regards numbers and qualifications of the matter of the bench and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
(3) the case comes before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defeat in competence is fatal, for the proceedings are a nullity however, well conducted and decided; the defect is extrinsic to the adjudication”

Given the objection taken at the Court below as regards the issuance of the Writ of Summons, said not to have been issued in line with provision of Section 97 of the Sherriff and Civil Process Act and Order 3 Rule 9 of the High Court (Civil Procedure) Rules of Kaduna State, can it then be said that the suit before the trial Court below, was initiated by due process? That is the question the trial Court was called upon to answer in the first place among others, in the objection taken before it by Appellant but which the Court below glossed over when it refused to make a finding or pronouncement on same. It is the duty of Court to make pronouncement on every material issue submitted to it for determination. By the Writ of Summons, the Statement of claim and other documents which together form the Originating process, the address of the Defendant, now the Appellant was given as “AMATA VILLAGE ADAZI – NNUKWU ANOCHA L.G.A, ANAMBRA STATE”, that is to say, a place outside Kaduna State.

By virtue of the provision of Section 97 of the Sheriff and Civil Process Act, the Writ of Summons which initiated the suit should be endorsed along the format set out by that provision. That is to say, that the Summons should be endorsed for service on the Appellant in “AMATA VILLAGE ADAZI – NNUKWU ANOCHA L.G.A., ANAMBRA STATE” in this case on appeal, I can see that the Originating Process, i.e the Writ of Summons the Statement of Claim e.t.c, were not so endorsed for service outside jurisdiction of the High Court of Kaduna State. The fact that there was a subsequent order of the High Court for substituted service on the Appellant does not or will not obliterate the initial requirement for endorsement of the Writ meant for service outside the jurisdiction of the issuing authority. Going therefore, by the provision of Order 5 Rule 1 of the High Court (Civil Procedure) Rules, 2007 of Kaduna State, there has been a failure of compliance with the requirement for commencing proceedings, in which case, the failure automatically nullifies the proceedings. Where a statute or rule of Court provides for a procedure for commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent. See: AGIP (Nig.) Ltd. v. AGIP Petrol Int. (2010) 5 NWLR (Pt. 1187)348, 419.
I am not unmindful of the submissions made by the learned Silk for the Respondent in the adumbration of his brief of argument that the issue of jurisdiction raised by Appellant’s counsel was merely procedural jurisdiction and not substantive jurisdiction. He argued that procedural jurisdiction can be waived and that the Appellant waived procedural jurisdiction of the lower Court. He relied on the decision in Husseini Isa Zakirai v. Salisu Dan Azumi Mohammad & Ors. 230 (2017) 17 NWLR (Pt. 1594) 181, 280, para B – H, to urge us to dismiss this appeal.
The issue here is, whether the trial Court addressed all the issues raised by the Preliminary Objection, one of which relate to non-compliance with the requirement for initiating actions or suits as done by the Respondent at the Court below.
For the avoidance of doubt Order 5 Rule 1(1) of the High Court (Civil Procedure) Rules of Kaduna State, 2007 provides that:

“Where in the beginning or purporting to begin any procedures there has been a failure to comply with the requirement of these rules, the failure shall nullify the proceedings”
It is thus, not a matter of choice for any of the parties to the suit to waive any statutory provisions such as the one under reference which in any case, was enacted with compulsive flavour, cannot be waived. Once there is failure of compliance, that does it and the Court, saddled with the duty to make those pronouncements must not waver but come out clearly to address the question.
Where however, an issue is subsumed in another issue, it may not be necessary to consider that issue to make a separate pronouncement on it. See the decision in Adebayo v. A. G, Ogun State (2008) 7 NWLR (Pt. 1055) 201.
Again it has been argued for the Appellant herein at the Court below as the Defendant/Applicant that there being no contractual relationship between the parties to the suit, action cannot lie against the Appellant for breach of a contract that never existed.
When the question arises as to whether or not there subsists a valid and enforceable contract between the Appellant and the Respondent, as a point of Preliminary Objection to the suit being heard, it behoves on the Court where the objection was raised to look into the matter based on the materials supplied to it, to reach a definite conclusion on the existence or nonexistence of the contract as alleged. The Court cannot shy away from carrying out this Inquiry neither can it take it as already done merely because it has territorial jurisdiction to hear the case, when the existence of the subject matter was still not confirmed by it or pronouncement made on it.
It is also necessary for the trial Court to pronounce on the competence or otherwise of the Writ of Summons wherever the issue is raised by way of Preliminary Objection. All these cannot be subsumed under one head but the Court has a duty to address each one of them hence failure by the trial Court to do just that, has in my view, occasioned a miscarriage of justice. I resolve issue No. 1 in favour of the Appellant.

I will now address issue No. 2. It is more or less intertwined as it relate to issue No. 1 already discussed. The question posed under issue No. 2 is whether the lower Court ought to have relied only on averments contained in paragraph 6 of the Statement of claim in making its finding as to Kaduna, as the place of performance of alleged contract when evidence already adduced by the Respondent himself points to a contrary place of performance.

Parties in their respective briefs of arguments through their counsel have addressed this question. For the Appellant the submission on this point is at pages 22 – 29 of the Appellant’s brief of argument. Put briefly, the submission made is that Kaduna being the place of the performance of the alleged contract notwithstanding, Plaintiff’s/respondent’s averment at paragraph 6 of the Statement of claim given the Evidence of the Plaintiff (PW1) who contradicted himself, speaking under cross-examination. It has been submitted for the Appellant that in determining whether or not the Court has jurisdiction over a matter, it is the Writ of Summons and the Statement of claim that must be looked into so as to ascertain if by the facts averred therein the Court has jurisdiction. He argued further, stating that in the event evidence has been adduced in the matter, the Court will not restrict itself only to the pleadings as contained in the Statement of claim but consider evidence of the witness or witnesses as well as to ascertain if indeed the Court has jurisdiction.

The submission made by counsel to the Respondent at pages 5 – 10 of the Respondent brief of argument is to the same effect, that is to say that the averments is the Statement of claim and evidence led in support of those averments must, as well be considered by the Court.

When the question arises as to whether or not a Court has jurisdiction in any given matter, resort will be had to the Writ of Summons and the Statement of claim, since it is the claim that confers jurisdiction on the Court, in line with the enabling enactment which created or established the Court. The Court will consider and examine the nature of the Writ of Summons and the Statement of Claim since it is the claim or relief sought that donate jurisdiction to the Court. The Court cannot look elsewhere. See decision in Shelim v. Gobang (2009) 12 NWLR (Pt. 1156) 435, 452; Lufthansa Airlines v. Odiese (2006) 7 NWLR (Pt. 978) 73; Cavendish Petroleum Nigeria Ltd & Anr. V. Alhaji Tahir Deribe & Anr. (2014) LPELR 23350 (CA); Iyabi Ayah v. Ayah (1997) 10 NWLR (Pt. 523) 143; A.G. Fed v. Guardian Newspapers (1999) 9. NWLR (Pt. 618) 18 (2000) 8 NWLR (Pt. 618) 18; Magaji v. Matari (2000) 8 NWLR (Pt. 670) 722. Where however, evidence has been led, the Court will go extra mile to look into that evidence of the witness taken in addition to the facts pleaded in the Statement of claim. See: PDP v. Sylva (2012) NWLR (Pt. 1316) 83; Wambai v. Donatus & Ors. (2014) 14 NWLR (Pt. 14270) 223, 256; Yaradua & 90 Ors. V. Yandoma & 13 Ors. (2015) 4 NWLR (Pt. 1448) 124, 161. In this case on appeal, evidence of one (1) witness had been taken in the person of the Plaintiff/Respondent, who spoke as PW1. The question we seek to answer here is whether the trial Court was right to conclude as it did at pages 7-8 of the additional record that Kaduna is the place of the performance of the contract, by the consideration only of facts contained in the Statement of claim and thus can assume jurisdiction over the matter? Given the facts and evidence on the printed record, the Court below, in the determination of the question whether or not it can assume jurisdiction over the matter was wrong to restrict itself to the averments contained in the Statement of claim alone. He needed to consider the totality of the facts contained in the Statement of claim as per the averments at paragraphs 3, 6, 8, 10 as well and the evidence of PW1 in determining whether Kaduna is the place of the performance of the contract as alleged by the Plaintiff/Respondent. By the averment contained at paragraph 6 of the Statement of claim in particular, it is obvious that the place of the performance of the contract is put at Kaduna and this ordinarily will vest on the High Court of Kaduna State with the jurisdiction to hear the case by reason of the relevant provisions of the High Court (Civil Procedure) Rules of Kaduna State. However, given the fact that the Plaintiff/Respondent led evidence in the case through PW1, the duty falls on the trial Court to consider the totality of that evidence along with stated or pleaded facts in the Statement of claim so as to ascertain where indeed, the place of the performance of the contract is. Until that exercise has been carried out and a finding made in that respect, it is wrong in my view for the trial Court below to rely and act on the averments in the Statement of claim alone to reach a decision. This is where the trial Court got it all wrong. The Court failed to consider evidence of PW1 before coming to a conclusion that the contract was executed in Kaduna and for which reason the Court assumed jurisdiction over the case.

In the Statement of claim (pages 4 – 6 of the record) the Respondent averred at paragraph 6 thus:
“The Plaintiff avers that it was agreed that the six hundred (600) pieces of fairly used bicycles was (sic) to be sent to him in a Forty Foot (40ft) container from Holland to Kaduna”

Evidence advanced in support of that averment is at paragraph 6 of the deposition made by the Respondent himself, which he adopted as his evidence-in-chief and this is to the effect that:
“The parties also agreed that the said 600 pieces of fairly used bicycles was (sic) to be sent (sic) to me in a Forty foot (40ft) container from Holland to Kaduna”

The witness (PW1) however, speaking under cross-examination stated at page 87 of the same record of appeal that:
“At the time transfer of the money the Defendant was in Kaduna. The goods was coming from Holland by Sea. They are to land in Lagos and arrive at Inland, Container by Railway Down quarters”

Whatever that expression is meant, the fact is that the same was not so pleaded as a fact hence that piece of evidence run contrary to what the witness stated in his evidence in chief, as the place where the contract was performed or executed. Clearly that piece of his evidence under cross-examination i.e “They are to land in Lagos and arrive at Inland Container by Railway Down quarters cannot in all honesty be the same thing neither can it be interpreted to mean that the goods were sent and delivered in Kaduna”. The two versions of the evidence of PW1 both his evidence in chief and his evidence under cross-examination cannot stand side by side as the two are contradictory.
Given those circumstances the testimony of the witness amount to no evidence at all on account of this contradiction. The apex Court in Ezemba v. Ibeneme & Anr. (2004) 14 NWLR (Pt. 894) 617 has described those type of witnesses as lacking in honour of credibility and such witness does not deserve to be treated as a truthful witness. See: Union Bank of Nig. Plc v. Clean Vision & Coy Ltd (2015) LPELR – 2500 (CA).

By the PW1 contradicting himself that two versions of his testimony, both in his evidence in chief and his evidence under cross-examination on the question of the place for the performance of the contract, both cancel out each other as no evidence at all and the Court at this point cannot choose which version to believe and which not to believe. The Court must disregard each conflicting version. The apex Court in Bassil & Anr. V. Fajebe & Anor. (2001) 4 SC (Pt. 11) 119 has held that:
“It is not the law that parties are permitted to make inconsistent assertions on the questions of fact or adduce inconsistent evidence over one and the same issue. A party who adduces inconsistent evidence over one and the same issue damages his own case unless he can reconcile the apparent inconsistency”.

Indeed, PW1’s evidence in chief on this point and his evidence under cross-examination should be discountenanced. So be it. This leaves the averment at paragraph 6 of the Statement of Claim bare or barren, there being no evidence in support thereof. Facts pleaded over which no evidence was led are deemed abandoned. See: Ikem v. Vidah Packaging Ltd. (2011) LPELR – 3825 (CA). The Court below cannot therefore rely or act on facts which are deemed abandoned.
This appeal on the whole, succeeds on the two issues canvassed and same is allowed.

Given my position relative to issue No. 1 as earlier discussed, the Writ of Summons and the Statement of claim which heralded the suit at the trial Court, being incompetent, must be struck out and I make that Order accordingly, striking out suit No. KDH/KAD/358/2016 before the High Court of Kaduna State. The sum of N50,000.00 is assessed as cost against the Respondent.
Ordered accordingly.

HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the lead judgment of my learned brother Sa’idu Tanko Husaini, JCA. I agree with the eloquent reasoning therein for the conclusion that the appeal has merit and should be allowed.
I allow the appeal and subscribe to all the consequential orders as made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I agree with the judgment delivered by my learned brother, Saidu Tanko Husaini, JCA.

Appearances:

Mr. A. A. Iroagalachi, Esq. with him, B. C. Iroagalachi, Esq. For Appellant(s)

Mr. O. C. Enwelum (SAN) with him, Joel Adamu Esq. and Bilkisu Tanko, Esq. For Respondent(s)